Allowed

Asokan v. Commercial Tax Officer

Kerala HC3 Nov 2016WP(C)/10994/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a registered dealer challenging assessment and penalty orders for 2012-13 and 2014-15. Relying on a Division Bench judgment, the court held that the benefit of Section 6(5) of the KVAT Act (0.5% presumptive tax) must be granted even if the total turnover, including corrected suppressed amounts, remains below 60 lakhs.

What did the court decide?

Impugned assessment and penalty orders set aside; directing the Assessing Officer to recompute tax under Section 6(5) of the KVAT Act.

Asokan Vs Commercial Tax Officer — GST and Indirect Tax | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 10994 of 2016 (Y)

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PETITIONER:

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ASOKAN, LEENA PAINT, ALUVILA, KOONAYIL, PARAVOOR, KOLLAM DISTRICT.

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BY ADVS.SRI.S.SURESH BABU (CHERUNNIYOOR) SRI.AJI V.DEV

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RESPONDENT(S):

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1. COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, CHATHANNOOR, KOLLAM 691 001.

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2. THE COMMISSIONER OF COMMERCIAL TAXES, KARAMANA, TAX TOWERS, THIRUVANANTHAPURAM 695 001.

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BY ADV. GOVERNMENT PLEADER SMT M.M.JASMIN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 10994 of 2016 (Y)

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PETITIONER(S)' --------------	APPENDIX EXHIBITS ---------
P1	A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27/10/2015 FOR 2012-13.
P1(A):	A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26/10/2015 FOR 2014-15.
P2	A TRUE COPY OF THE REPLY TO SHOW CAUSE NOTICE DATED 25/11/2015 FOR 2012-13.
P2(A)	A TRUE COPY OF THE REPLY TO SHOW CAUSE NOTICE DATED 25/11/2015 FOR 2014-15.
P3	A TRUE COPY OF THE ORDERS AND DEMAND NOTICE DATED 25/11/2015 FOR 2012-13.
P3(A);	A TRUE COPY OF THE ORDERS AND DEMAND NOTICE DATED 25/11/2015 FOR 2014-15.
P4	A TRUE COPY OF THE DEMAND DRAFT NUMBER 618558 DATED 14/1/2016 OF STATE BANK OF TRAVANCORE, SOUTH PARAVOOR BRANCH, FOR RS.9,308/- TOWARDS TAX AND PENALTY FOR THE YEARS 2012-13 AND 2014-15.
P4(A)	A TRUE COPY OF THE COVERING LETTER DATED 14/1/2016 FOR THE YEARS 2012-13 AND 2014-15.
P5	A TRUE COPY OF THE NOTICE U/S.25(1) OF THE KVAT ACT RED/W-22(7) DATED 23/1/2016 FOR 2012-13.
P5(A)	A TRUE COPY OF THE NOTICE U/S.25(1) OF THE KVAT ACT RED/W-22(7) DATED 23/1/2016 FOR 2014-15.
P6	A TRUE COPY OF THE OBJECTION TO NOTICE DATED 29/1/2016 FOR 2012-13.
P6(A)	A TRUE COPY OF THE OBJECTION TO NOTICE DATED 29/1/2016 FOR 2014-15.
P7	A TRUE COPY OF THE ASSESSMENT ORDER DATED 10/2/2016 FOR 2012-13.
P7(A)	A TRUE COPY OF THE ASSESSMENT ORDER DATED 10/2/2016 FOR 2014-15.
P7(B)	A TRUE COPY OF THE PENALTY ORDER DATED 10/2/2016 FOR 2012-13.
P7(C)	A TRUE COPY OF THE PENALTY ORDER DATED 10/2/2016 FOR 2014-15.
RESPONDENT(S)' --------------	EXHIBITS NIL ---------

P.A.TO JUDGE

/TRUE COPY/

K.V.

A.M.SHAFFIQUE, J.

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W.P.(C).No.10994 of 2016

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-----------------------------------

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Dated this the 3^rd day of November, 2016

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J U D G M E N T

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Petitioner who is a registered dealer under the KVAT Act who had opted for tax at 0.5% of the KVAT Act as a presumptive dealer challenges the assessment orders as well as the penalty orders inter alia contending that though the turnover is less than 60 lakhs,₹ still, the assessing officer has assessed higher rate of tax alleging suppression of turnover and has also imposed penalty for the same.

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This issue is covered by the Division Bench judgment of this Court in Mooken Devassy & Co. v. Commercial Tax Officer [(2016) 24 KTR 516 (Ker)], wherein, after considering the aforesaid issue, the Division Bench held at para 4 as under:-

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“4. There is no dispute even for the Department that the appellant is a registered dealer and that they have opted for payment of tax under Section 6(5) of the Act. However, the benefit of the Section has been denied to the appellant on the basis that certain suppression of turnover has been detected. Though it is true that suppression of turnover has been detected and an equal amount of turnover has been added, still the fact remains that the total turnover now quantified by the Assessing Officer is much less than 60 lakhs of rupees provided in Section 6(5). Section 6(5) of the Act do not contain a provision that an assessee in whose case suppression of turnover is detected will be denied the benefit of Section 6(5) of the Act. In such a

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W.P.(C).No.10994 of 2016

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case, even in spite of the turnover suppressed, since the turnover of the assessee is still below 60 lakhs of rupees, according to us, the assessee ought to have been given the benefit of Section 6 (5) of the Act. For that reason, we are unable to sustain the judgment under appeal and Ext.P3 order of assessment passed for the assessment year 2012-2013.”

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Having regard to the aforesaid facts, I am of the view that this writ petition is only to be allowed. Accordingly, the impugned orders, Exts.P7 to P7(c) are set aside. The assessing officer is directed to recompute the tax payable on the basis of Section 6(5) of the KVAT Act and also the penalty in terms with the alleged suppression.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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Asokan v. Commercial Tax Officer

Case brief

What is this about?

What did the court decide?

Asokan v. Commercial Tax Officer

Case brief

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What did the court decide?

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